Constitutionalism and Judicial Review

In De la Llana v. Alba,[1] the Court, speaking through Chief Justice Enrique Fernando, has held that “it is of the essence of constitutionalism to assure that neither agency is precluded from acting within the boundaries of its conceded competence.” The Chief Justice likewise stated that “pursuant to its grave responsibility of passing upon the validity of any executive or legislative act in an appropriate case, the Court has to resolve the crucial issue of the constitutionality of Batas Pambansa Blg. 129, entitled ‘An Act Reorganizing the Judiciary, Appropriating Funds Therefor and for Other Purposes.’”

In the same case, Chief Justice Fernando also held that “Philippine Constitutionalism proceeds upon the theory that a strong Supreme Court with power of judicial review is necessary to fulfill the essence of constitutionalism to ensure that all branches and instrumentalities of the government would not go beyond the limits of their powers or jurisdiction nor act with grave abuse of discretion.

Again, Chief Justice Fernando in his concurring opinion in NFSW v. Ovejera[2] argues that if the decisive consideration only in deciding a case is the language of the applicable statutes, the decision of the Court can still stand the test of scrutiny based on sheer logic. That would not suffice, however, he adds and he explains that:

“Such an approach, to my mind, is quite limited. The standard that should govern is the one supplied by the Constitution. That is the clear implication of constitutionalism. Anything less would deprive it of its quality as the fundamental law. It is my submission, therefore, that statutes, codes, decrees, administrative rules, municipal ordinances and any other jural norms must be construed in the light of and in accordance with the Constitution. There is this explicit affirmation in the recently decided case of De la Llana v. Alba sustaining the validity of Batas Pambansa Blg. 129 reorganizing the judiciary: ‘The principle that the Constitution enters into and forms part of every act to avoid any unconstitutional taint must be applied.’ x x x”

The principle that statutes, codes, decrees, administrative rules, municipal ordinances and any other jural norms must be construed in the light of and in accordance with the Constitution requires an ultimate authority with power to construe and interpret the Constitution.

In British Constitutionalism, this ultimate authority rests with the House of Lords, while in American Constitutionalism where Philippine Constitutionalism takes its roots, this authority rests with a separate and distinct Supreme Court.

The criticism against having a separate and distinct Supreme Court was summarized by Alexander Hamilton in Federalist No. 81, viz.:

“The arguments or rather suggestions, upon which this charge is founded are to this effect: ‘The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is unprecedented as it is dangerous. In Britain the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of several States, can at any time rectify, by law, the exceptional decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.’”[3]

Hamilton considers this criticism as made up altogether of false reasoning upon misconceived fact. He explains:

“In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than what may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard for construction of the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of convention, but the general theory of limited Constitution; and as far as it is true is equally applicable to most if not to all the State governments.”[4]

While Hamilton acknowledges that there is no direct constitutional grant of the power of judicial review to the Supreme Court of the United States, he sees, however, as a doctrine flowing from the general theory of limited Constitution, that the Constitution shall be the standard for the validity of all laws and that any law in opposition to it must vow to its mandate.

Hamilton’s dictum that “laws ought to give place to the Constitution,” that is, whenever there is an evident opposition, has been the very same basis used by Chief Justice John Marshall in Marbury v. Madison[5] when he secured for the Supreme Court of the United States the power of judicial review notwithstanding the lack of an express grant of such power in the Constitutional text. Marshall argues:

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the court must decide on the operation of each.

“So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide the case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the essence of judicial duty.

“If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

Constitutionalism cannot be divorced from judicial review. If the Constitution is to remain supreme, there has to be an effective mechanism by which the system itself could clean itself up of the excesses and ultra vires acts of government. In this sense, constitutionalism is dependent on the existence and the courageous exercise of the power of judicial review.

Chief Justice Fernando expounds on this concept further in his concurring and dissenting opinion in the case of Peralta v. Comelec[6]:

It is a reassuring feature of the martial law regime in the Philippines that this Court had repeatedly entertained suits challenging the validity of presidential decrees raised in appropriate legal proceedings. It is a role it had never shunned. There is thus adherence to the path of constitutionalism, both in normal times and under crisis conditions. Even during this period of emergency, parties had come to this Tribunal whenever, in their opinion, the executive act assailed was tainted by the vice of nullity. They did complain, and they were heard. In that way, this Court manifested fealty to the basic tenet of constitutionalism. For there is no issue so basic that it cannot be settled within the constitutional framework. Courts, in the language of Chief Justice Concepcion, ‘have, not only jurisdiction to pass upon [such questions] but also the duty to do so, which cannot be evaded without violating the fundamental law and paving the way to its eventual destruction.’ Judicial review is thus the dominant constitutional concept to assure that the Constitution remains supreme. It is an awesome power, to be sure, but reasons of delicacy as well as the courtesy due a coordinate branch do not suffice to ward off judicial intervention in proper cases. More specifically, this Tribunal cannot avoid the responsibility thrust upon it to vindicate the rights safeguarded by the Constitution.

Guarding the exalted position of the Constitution as the supreme law is the essence of constitutionalism, and judicial review stands is its best safeguard. Justice Laurel champions this concept in the landmark case of Angara v. Electoral Commission:[7]

“The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed ‘judicial supremacy’ which properly is the power of judicial review under the Constitution.”

[1] G.R. No. 57883, March 12, 1982
[2] G.R. No. L-59743, May 31, 1982
[3] The Federalist Papers, Federalist No. 81, (with Kesler Introduction and Notes), New American Library, 1989, p. 450
[4] Ibid.
[5] 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)
[6] G.R. No. L-47771, March 11, 1978
[7] 63 Phil. 139 (1936)

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